(A) Purpose. Variances are intended to address practical difficulties or provide relief from a hardship resulting from strict application of zoning standards. Variances may not be used to permit a use in a zoning district that is not otherwise allowed in that district, nor shall variances be used to vary or waive the subdivision standards of the Fairmont Town Subdivision Regulations. Variances can be used to provide relief from the dimensional standards of the zoning ordinance, such as setback requirements, height of structures, lot coverage and similar standards. Variances and the conditions of the variance apply to the and run with the property. A transfer of ownership or occupancy has no impact on the application of a variance to the property.
(B) Process required. The Board of Adjustment shall follow quasi-judicial procedures when deciding on variances. The regulations below apply specifically to variance decisions. For similar state law provisions, refer to G.S. §§ 160D-406(a) and 160D-705.
(1) Filing. An application for a variance shall be submitted to the Board of Adjustment by filing a copy of the application, on a form approved by the Town Board of Commissioners, and payment of the required filing fee to the Town Clerk. An agent designated by the property owner may file the application for a variance and must complete the agent form. Signature(s) of the property owners are required on that form. An application for a variance shall be considered filed when delivered to the office of the Town Clerk, the required filing fee paid, and the date and time of filing entered on the application by the Town Clerk. The Clerk shall then submit the completed application to the Zoning Enforcement Officer.
(2) Date for hearing. The Town's Board of Adjustment with the Zoning Enforcement Officer shall establish a date for the evidentiary hearing.
(3) Notice of hearing. Notice of evidentiary hearings conducted shall be mailed to:
(a) The person or entity whose appeal, application, or request is the subject of the hearing;
(b) The owner of the property that is the subject of the hearing if the owner did not initiate the hearing; and
(c) The owners of all parcels of land abutting the parcel of land that is the subject of the hearing;
(d) Any other persons entitled to receive notice as provided by the local development regulation. In the absence of evidence to the contrary, the local government may rely on the town tax listing to determine owners of property entitled to mailed notice.
(e) The notice must be deposited in the mail at least 15 days, but not more than 25 days, prior to the date of the hearing. Within that same time period, the local government shall also prominently post a notice of the hearing on the site that is the subject of the hearing or on an adjacent street or highway right-of-way. The board may continue an evidentiary hearing that has been convened without further advertisement. If an evidentiary hearing is set for a given date and a quorum of the Board is not then present, the hearing shall be continued until the next regular Board meeting without further advertisement.
For similar state law provisions, refer to G.S. § 160D-406(b).
(4) Distribution of materials. The Zoning Enforcement Officer shall transmit to the Board of Adjustment all documents and exhibits constituting the record upon which the action appealed from is taken. The Zoning Enforcement Officer shall also provide a copy of the record to the appellant and to the owner of the property that is the subject of the appeal if the appellant is not the owner.
(a) The materials may be distributed to the members of the Board prior to the hearing if at the same time they are distributed to the Board a copy is also provided to the appellant or applicant and to the landowner if that person is not the appellant or applicant.
(b) The administrative materials shall become a part of the hearing record.
(c) The administrative materials may be provided in written or electronic form.
(d) Objections to inclusion or exclusion of administrative materials may be made before or during the hearing. Rulings on unresolved objections shall be made by the Board at the hearing.
For similar state law provisions, refer to G.S. § 160D-406(c).
(5) Zoning Enforcement Officer present at hearing. The Zoning Enforcement Officer shall be present at the hearing.
(6) Continuations of properly advertised hearings. The Planning Board may continue an evidentiary hearing that has been convened without further advertisement. For similar state law provisions, refer to G.S. § 160D-406(b).
(7) Quorum required for hearing, continuance. If an evidentiary hearing is set for a given date and a quorum of the Board is not then present, the hearing shall be continued until the next regular Board meeting without further advertisement. For similar state law provisions, refer to G.S. § 160D-406(b).
(8) Presentation of evidence.
(a) Parties in the presentation of evidence. The applicant, the town, and any person who would have standing to appeal the decision under G.S. § 160D-1402(d) shall have the right to participate as a party at the evidentiary hearing.
(b) Other witnesses. Other witnesses may present competent, material, and substantial evidence that is not repetitive as allowed by the Board.
(c) Objections. Objections regarding jurisdictional and evidentiary issues, including but not limited to, the timeliness of an appeal or the standing of a party, may be made to the Board.
(d) Ruling on objections. The Board chair shall rule on any objections and the chair's rulings may be appealed to the full Board. These rulings are also subject to judicial review pursuant to G.S. § 160D-1402.
(e) Objections on jurisdiction. Objections based on jurisdictional issues may be raised for the first time on judicial review.
For similar state law provisions, refer to § 160D-406(d).
(9) Appearance of official/new issues.
(a) Town official must be present. The official who made the decision or the person currently occupying that position if the decision-maker is no longer employed by the town, shall be present at the evidentiary hearing as a witness.
(b) Content. The appellant shall not be limited at the hearing to matters stated in a notice of appeal.
(c) Continuance. If any party or the town would be unduly prejudiced by the presentation of matters not presented in the notice of appeal, the Board shall continue the hearing.
For similar state law provisions, refer to G.S. § 160D-406(e).
(10) Oaths. The chair of the Board or any member acting as chair and the clerk to the Board are authorized to administer oaths to witnesses in any matter coming before the Board.
(a) Violation of oath. Any person who, while under oath during a proceeding before the Board determining a quasi-judicial matter, willfully swears falsely is guilty of a Class 1 misdemeanor.
For similar state law provisions, refer to G.S. § 160D-406(f).
(11) Subpoenas.
(a) Who may issue subpoenas. The Board making a quasi-judicial decision under G.S. Chapter 160D through the chair, or in the chair's absence anyone acting as chair, may subpoena witnesses and compel the production of evidence.
(b) Request to be made in writing. To request issuance of a subpoena, the applicant, the town, and any person with standing under G.S. § 160D-1402(d) may make a written request to the chair explaining why it is necessary for certain witnesses or evidence to be compelled. The chair shall issue requested subpoenas he or she determines to be relevant, reasonable in nature and scope, and not oppressive.
(c) Ruling on motions regarding subpoenas. The chair shall rule on any motion to quash or modify a subpoena. Decisions regarding subpoenas made by the chair may be immediately appealed to the full Board.
(d) Failure to obey. If a person fails or refuses to obey a subpoena issued pursuant to this division (11), the Board or the party seeking the subpoena may apply to the General Court of Justice for an order requiring that its subpoena be obeyed, and the court shall have jurisdiction to issue these orders after notice to all proper parties.
For similar state law provisions, refer to G.S. § 160D-406(g).
(12) Decisions. The Board of Adjustment shall determine contested facts and make its decision within a reasonable time.
(a) Basis for decision. Every quasi-judicial decision shall be based upon competent, material, and substantial evidence in the record.
(b) Decision to be in writing. Each quasi-judicial decision shall be reduced to writing, reflect the Board's determination of contested facts and their application to the applicable standards and be approved by the Board and signed by the chair or other duly authorized member of the Board.
(c) When decision is effective. A quasi-judicial decision is effective upon filing the written decision with the clerk to the Board or such other office or official as the development regulation specifies.
(d) Delivery. The decision of the Board shall be delivered within a reasonable time by personal delivery, electronic mail, or by first-class mail to the applicant, landowner, and to any person who has submitted a written request for a copy prior to the date the decision becomes effective.
(e) Provide notice. The person required to provide notice shall certify to the town that proper notice has been made and the certificate shall be deemed conclusive in the absence of fraud.
For similar state law provisions, refer to G.S. § 160D-406(j).
(13) Decision basis for variance. When unnecessary hardships would result from carrying out the strict letter of the zoning ordinance, the Board of Adjustment may vary any of provisions of the ordinance upon a showing of all of the following:
(a) Unnecessary hardship would result from the strict application of the regulation. It shall not be necessary to demonstrate that, in the absence of the variance, no reasonable use can be made of the property.
(b) The hardship results from conditions that are peculiar to the property, such as location, size, or topography. Hardships resulting from personal circumstances, as well as hardships resulting from conditions that are common to the neighborhood or the general public, may not be the basis for granting a variance. A variance may also be granted when necessary and appropriate to make a reasonable accommodation under the Federal Fair Housing Act for a person with a disability.
(c) The hardship did not result from actions taken by the applicant or the property owner. The act of purchasing property with knowledge that circumstances exist that may justify the granting of a variance shall not be regarded as a self-created hardship.
(d) The requested variance is consistent with the spirit, purpose, and intent of the regulation, such that public safety is secured and substantial justice is achieved.
For similar state law provisions, refer to G.S. §§ 160D-405(e) and 160D-705(d).
(14) No change in permitted uses may be authorized by variance. Appropriate conditions may be imposed on any variance, provided that the conditions are reasonably related to the variance. Any other development regulation that regulates land use or development may provide for variances from the provisions of those ordinances consistent with the provisions of this division.
For similar state law provisions, refer to G.S. §§ 160D-405(e) and 160D-705(d).
(C) Voting. The concurring vote of four-fifths of the Board of Adjustment shall be necessary to grant a variance. For the purposes of this division, vacant positions on the Board and members who are disqualified from voting on a quasi-judicial matter under G.S. § 160D-109(d) shall not be considered members of the Board for calculation of the requisite majority if there are no qualified alternates available to take the place of such members. For similar state law provisions, refer to G.S. § 160D-406(i).
(D) Statute of limitations. A variance may be issued for an indefinite duration or for a specified duration only. Unless otherwise specified, any order or decision of the Board of Adjustment granting a variance shall expire if the applicant does not obtain a building permit or certificate of occupancy for
such use within 60 days from the date of the decision or if construction of the use has not commenced within 180 days from the date of the issuance of a building permit. For similar state law provisions, refer to G.S. Chapter 1, subchapter 11.
(E) Variance not a site-specific vesting plan. A variance does not constitute a site-specific vesting plan, and approval of a site-specific vesting plan with the condition that a variance be obtained does not confer a vested right unless and until the necessary variance is obtained. If a sketch plan or other document fails to describe with reasonable certainty the type and intensity of use for a specified parcel or parcels of property, it may not constitute a site-specific vesting plan. For similar state law provisions, refer to G.S. § 160D-108.1(a).
(F) Record. A record shall be made of all hearings and such record shall be kept as provided by state law. Accurate minutes shall also be kept of all such proceedings, but a transcript need not be made. Whenever practicable, all documentary evidence presented at a hearing as well as all other types of physical evidence shall be made a part of the record of the proceedings.
(G) Revocation. In addition to initiation of enforcement actions under G.S. § 160D-404, development approvals may be revoked by the local government issuing the development approval by notifying the holder in writing stating the reason for the revocation. The revocation of a development approval by a staff member may be appealed pursuant to G.S. § 160D-405. The conduct of any activity or the use, operation, construction, maintenance or removal of any facility in violation of any of the conditions of a variance shall be grounds for revocation of said variance. The Zoning Enforcement Officer shall set a date for public hearing before the Board of Adjustment and at such time said Board may revoke the variance, citing the reasons therefor. Notice of such hearing shall be made in the same manner as required for a variance application. The local government shall follow the same development review and approval process required for issuance of the development approval, including any required notice or hearing, in the review and approval of any revocation of that approval. Development approvals shall be revoked for any substantial departure from the approved application, plans, or specifications; for refusal or failure to comply with the requirements of any applicable local development regulation or any state law delegated to the local government for enforcement purposes in lieu of the state; or for false statements or misrepresentations made in securing the approval. Any development approval mistakenly issued in violation of an applicable state or local law may also be revoked. Unless otherwise specified by the Board of Adjustment, all activities or facilities permitted by the variance shall cease and/or be removed not later than sixty calendar days following the date of determination to revoke the variance. The determination of the Board of Adjustment shall be deemed final and may not be appealed to the Board of Commissioners. For similar state law provisions, refer to G.S. § 160D-403(f).
(H) Duration of development approval (variance).
(1) Unless a different period is provided by a quasi- judicial development approval, a development agreement, or a local ordinance, a development approval issued pursuant to this chapter shall expire one year after the date of issuance if the work authorized by the development approval has not been substantially commenced.
(2) If after commencement the work or activity is discontinued for a period of 12 months after commencement, the development approval shall immediately expire. The time periods set out in this subsection shall be tolled during the pendency of any appeal. No work or activity authorized by any development approval that has expired shall thereafter be performed until a new development approval has been secured. Nothing in this subsection shall be deemed to limit any vested rights secured under G.S. § 160D-108. For similar state law provisions, refer to G.S. § 160D-403(c).
(Ord. 23-241, passed 7-18-2023)